Extension of Period of Limitation in Certain Cases

Extension of Period of Limitation in Certain Cases

Introduction:

Section 5 of the Limitation Act 1908 provides that any appeal or application for a revision or a review of judgment or for Leave to Appeal or any other application to which this section may be made applicable may be admitted after period of limitation prescribed therefore, when the appellant or applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Scope;

Section 5 applies only to appeals and certain applications mentioned in the section. It should be noted that it does not apply to suits. The reason is that the period prescribed for most of the suits extends from three to twelve years, while the period prescribed for appeals and applications mentioned in the section does not exceed six months; some concession has, therefore, been allowed in respect of these appeals and applications.

“Sufficient cause”

The words “Sufficient Cause” should receive a liberal construction so as to advance substantial justice. The expression “Sufficient Cause” must be determined by reference to the circumstances of particular case. “Sufficient Cause” being a question of fact, varies from case to case and ultimately rests on the satisfaction of the court. When the court is satisfied that circumstances or set of circumstances shown by a party, justified that act or omission of such party for not preferring appeal or application within the prescribed period, the court can extend the time. Parameter of each case would primarily be on its own facts which would have to be taken into consideration for determining as to whether sufficient cause was show or not. The section gives a wide discretion in determining what the sufficient cause is, but the discretion has to be exercised judicially and not arbitrarily.

Test for determining sufficient cause:

Test for determining sufficient cause is to see whether it could have been avoided by a party by exercise of due care and attention, in other word, whether it is a bona fide mistake. Noting shall be deemed to be bona fide or in good faith which is no done with due care and attention.

Discretion to admit.

Question whether delay should be or should not be condoned, lies within the discretion of authority before whom a matter is agitated. Such discretion cannot be interfered with unless same has been exercised illegally or arbitrarily.

Exercise of discretion should appear on record. There must be something in order itself to show that proceedings were out of time and court had applied its mind to question of limitation before deciding proceedings on merits. The order condoning delay must indicate that delay was condoned and cogent reasons must be given for such condonation.

Principles governing exercise of discretion:

It is settled principle of law that in matters of condonaton of delay, the delay of each day has to be explained. The person desiring the court to condone the delay u/s. 5 must explain every day delay.

Null and void order:

Condonation of delay on ground of nullity of the order appealed against, can be allowed only if the order was without jurisdiction. The power of the appellate authority to decide the case on merits will not be hinged by any consideration of limitation, if the order appealed against is found to be nullity.

Advice of counsel:

The negligent advice of a counsel can obviously be made a basis for condoning delay as same would amount to giving premium on one’s own neglect.

Mistake or ignorance of law:

A mistake or ignorance of law is not a sufficient cause. Mere ignorance of law cannot be recognized as sufficient cause for delay, for that would be putting a premium on ignorance.

Poverty, illness, negligence:

Poverty of the appellant or the applicant, or mere pea of illness or negligence is not a sufficient cause.

Imprisonment:

Imprisonment in a criminal jail may be considered as a considered as a sufficient cause and the time spent in jail may be deducted.

Government:

Government cannot be treated differently than private litigant on question of limitation u/s. 5 of Limitation Act 1908